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January 2020
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Appeals Court Makes The Right Call Regarding Non-Commercial Creative Commons Licenses

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We've pointed out for years that there's always been some level of confusion about the boundaries of the "non-commercial" tag on a Creative Commons license. There are lots of things that are kind of fuzzy about it. Does it mean you just can't sell the work? Or does it mean you can't even use it on a website if that website has ads on it? Indeed, we've worried that the non-commercial license created a bit of a branding problem for Creative Commons. However, to the organization's credit, it has spent plenty of time and effort over the past decade or so to try to clarify some of the confusion about non-commercial licensing, saying that it really just refers to the direct sale of such works.For the past few years, that's also meant that Creative Commons, the organization, has had to step in to an ongoing lawsuit over such a license, and inform the court what a non-commercial license actually means.The issue, in the case, was that an educational non-profit, Great Minds, sued various copy shops for making copies of its educational materials, even though they were licensed under Creative Commons BY-NC-SA 4.0 license. That license says the work can be copied, but only under non-commercial terms. Great Minds argued that because the copy shops, like FedEx and Office Depot, made money from the copies, that made it commercial. Creative Commons kept telling the court that this was a misreading of "non-commercial" and in the Office Depot case, the 9th Circuit has agreed.It's a nice, quick, and simple ruling:

There is no dispute that the school and school districtlicensees' copying of Great Minds' material is permittedunder the License. There also seems to be no dispute that ifOffice Depot were itself a licensee, commercial copying ofGreat Minds' material would fall outside the scope of theLicense and infringe Great Minds' copyright. The issue weconsider then is whether the school and school districtlicensees' exercise of their rights under the License throughthe services provided by Office Depot results in Office Depotbecoming a licensee. We hold that it does not. A licensee'shiring of a third-party copy service to reproduce licensedmaterial strictly for the licensee's own permitted use does notturn that third party into a licensee that is bound to theLicense terms.
Citing the ruling in the 2nd Circuit in the basically identical case that Great Minds brought against FedEx:
Great Minds'licensees may rely on non-employee agents in carrying outpermitted uses without converting those agents intoindependent licensees.
The court also notes (again, echoing the 2nd Circuit's ruling) that Great Minds' contention that Office Depot's "volitional" conduct changes matters, is "absurd":
Great Minds also contends that the volitional element,i.e., which entity's employee does the copying, isdeterminative in this case. But that argument produces thefollowing absurd results: (1) a teacher may copy Eureka Mathon an Office Depot-owned copy machine for a fee in-store,but cannot hand the materials to an Office Depot employee tobe copied; (2) a school may pay a copy machine provider amonthly fee to keep a machine on site to copy Eureka Math,but cannot pay Office Depot employees to make the samecopies; and (3) a school may permit teachers to copy EurekaMath on school-owned or leased machines, but cannot pay ahigh school student to make the same copies.Great Minds' interpretation cannot be correct.
So now we have rulings in both the 2nd and the 9th Circuit saying basically the same thing. That's useful, as those are the two biggest circuits for copyright law, generally. This is, at the very least, good news. Putting an NC license on Creative Commons works does not prevent all commercial activity, so long as that activity is within the reasonable ambit of the license.

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Data From Smartwatch Help Investigators Solve The Case Of The Stabbing That Never Happened

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Once again, another crime has been solved with the help of smart devices that shows "going dark" is mainly just an FBI product it's having trouble moving in such a sunshine-y market.Third party apps and a surveillance camera allowed investigators to solve one crime (by determining it never happened) and charge someone for the crime that actually happened. [via Slashdot]

A 26-year-old man faked his own stabbing at the West Bloomfield synagogue where he worked and then reported he was attacked because of his Jewish faith, authorities say.Now Sean Samitt is facing a felony charge of filing a false police report, according to West Bloomfield Police.
Samitt claimed to have been attacked while leaving work at the Temple Kol Ami. Supposedly the attackers stabbed him while yelling things about "you Jews" and "too many immigrants." Investigators were unable to find a weapon, blood, or any other evidence of the crime in the parking lot that Samitt claimed the attack took place.What they were able to find was a security camera attached to a house across the street that captured the crime that never happened. When they confronted Samitt with this, his story changed. He hadn't actually been hate crimed. Instead, he claimed he had passed out (due to an unnamed health condition) while doing dishes at the synagogue.He then claimed that this was kind of a hate crime as well, because he had been "harassed" about his medical condition at the synagogue and felt compelled to create a cover story for his inability to do dishes without losing consciousness.Sometimes the best surveillance is the surveillance we inflict upon ourselves.
Officers were able to obtain information from Samitt's cellphone health application that was synced to his Apple Watch, confirming he did not lose consciousness. Samitt then admitted to intentionally stabbing himself.
A wealth of data about people's lives is generated daily by anyone carrying a smartphone or wearing a smartwatch. Device encryption is only preventing investigators from seeing a very small slice of that. Almost every third party app generates records law enforcement can obtain from developers or in the multiple clouds storing data and communications. The few communication options that are completely locked down may impede a handful of investigations. But for the most part, law enforcement is coming out ahead in the so-called tech war, years after device encryption became a standard offering.

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